How Can Businesses Prepare for Changing Federal Toxics Laws?

July 1, 2013

Laws governing toxic substances are changing. In the absence of strong federal toxic regulations, states have filled the void by passing a number of laws that affect businesses’ use of, and responsibility for, toxic substances in their products. Businesses that can anticipate the arc of these laws can avoid the costly recalls, lawsuits, cleanups, and slowdowns in production that result from retroactively changing manufacturing processes to comply with regulations. So, what does the arc of these laws look like?

In the Northwest, Washington and Oregon are two states pushing the frontier of chemical policy. The Oregon Department of Environmental Quality (DEQ), for example, maintains an active list of priority toxins that it uses to prioritize regulation, toxics reduction, and monitoring activities. Washington has recently enacted two landmark bills to protect public health: the Children’s Safe Products Act (CSPA) in 2008 and the 2009 E-Cycle program. The CSPA aims to limit public exposure to toxic materials by limiting the levels of some materials (lead, cadmium, phthalates) in children’s toys and by requiring manufacturers to report use of other chemicals of high concern. The E-Cycle program requires manufacturers to be responsible for their products at the end of their life.

A recent GreenBiz article, by Ken Zarker of the Washington State Dept. of Ecology, highlights a few of this report’s key policy initiatives that businesses should note:

States are transitioning from piecemeal restrictions on specific chemicals towards a more integrated approach.

States are embracing environmentally preferable purchasing policies to promote ingredient disclosure related to state purchasing and to stimulate new markets.

States are looking for solutions that manage products throughout their lifecycle. This represents a comprehensive approach to the design, use and end-of-life phases of chemicals.

States are supporting economic development through green chemistry initiatives to promote product innovation and jobs.

State initiatives serve as the testing grounds for future federal regulation on toxic substances. And in the absence of strong federal regulation, states will continue to pass laws that fill gaps in protecting public health. But a shift in federal regulation may be nearer than some think. Within the last three months, the late Sen. Richard Lautenberg introduced two bills proposing overhauls of the much-maligned Toxic Substances Control Act (TSCA), which hasn’t changed significantly since enacted in 1976. The first, the Safe Chemicals Act (S.696), is a democrat-sponsored initiative that has received strong support from the environmental community, but not from the chemical industry. The second, the Chemical Safety Improvement Act (S.1009), has bi-partisan support and therefore a much better chance of survival in the Senate. Though it attempts to compromise between environmental health groups and industry, most environmental groups have been outspoken against the bill (see, for example, critiques from the Natural Resources Defense Council and the Environmental Working Group) for, among other things, placing the burden of proving chemical harm or safety on the U.S. Environmental Protection Agency (EPA) rather than business.

Progressive businesses (like Staples, Hewlett Packard, Kaiser Permanente, and Method) recognize the urgent need for Federal chemical reform. These companies are all members of the Business-NGO Working Group (BizNGO), an organization trying to bridge the gap between industry and environmental perspectives by promoting a market-based transition to safer chemicals. BizNGO makes strong market-based cases for TSCA reform from many different business perspectives.

One of its initiatives, for example, calls for chemical ingredient disclosure across the supply chain and disclosure of chemicals of high concern to the consumer. BizNGO suggests that disclosure would benefit consumers while allowing manufacturers to make more informed choices about their purchasing and processing decisions. They write: “In combination with increased information on the toxicity of chemicals in commerce, requiring chemical ingredient disclosure for all products as a component of chemicals policy reform would enable manufacturers at each step in the supply chain to make informed choices about the toxicity of the materials they purchase. Without such a requirement, manufacturers will continue to operate with limited information, unable to make strategic decisions to improve the safety of their products.”

In addition to benefitting public health, stronger federal chemical law also would help create a less uncertain marketplace for industry. The current climate of piece-meal state legislation is difficult for businesses to navigate and predict. Industries need to navigate mixed signals about the priorities of toxics reduction. They can be accountable to different toxic requirements in different states. As opposed to scattered state-by-state legislation, clear guidelines benefit both compliance and innovation.

However, both state laws and market forces are driving businesses toward using less hazardous materials. Forward thinking businesses can stay ahead on both fronts by using less toxics. Along with BizNGO, PPRC believes that businesses prioritizing the creation and adoption of safer chemicals will help our health, environment, and economy.